Saturday, June 20, 2015

“Compelling Government Interest”

     Time was, I wrote more than I do today about the abstract ideals that undergird freedom. These days, my attention is more focused on current events and what they portend. I’m not sure why that should be, except that it’s clear that, as Jubal Harshaw said in Stranger In A Strange Land, wallowing in the troubles of others can make you seriously neurotic.

     Back in the old Palace Of Reason days, and during the Eternity Road era that succeeded it, the subject of rights – what they are, why they exist at all, and what they imply for government in a society that respects them – was frequently on my mind. Of all the brief, powerful things ever said on the subject, my favorite is this one, from a Nineteenth-Century French politician and historian:

     Either rights exist, or they do not exist. If they exist, they involve absolute consequences...Furthermore, if a right exists, it exists at every moment. It is absolute today, yesterday, tomorrow, the day after tomorrow, in summer as in winter, not when it pleases you to declare it in force. [Louis Thiers]

     When Thomas Jefferson wrote the birth certificate of the United States:

     We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

     ...he had that concept of rights – the peaceable individual’s possession of absolute moral trumps that prohibit infringement for any reason – firmly in mind.

     Clearly, the Jefferson / Thiers concept of rights differs from that of a permission or a license, which is granted only when the State pleases to do so and may be qualified or withdrawn at any time. Which brings us to this morning’s question:

Are Americans accorded any rights whatsoever?

     Not de facto, mind you, but de jure. In other words: does an individual possess any absolute protections against State coercion? Protections that cannot legally be abridged, infringed, or set aside on the grounds of a “compelling government interest?”

     Think it over.


     “Life, Liberty, and the Pursuit of Happiness.” Jefferson’s original phrase was “Life, Liberty, and Property,” but after some wrangling with the rest of the convention he agreed to substitute “the Pursuit of Happiness,” probably because the assertion of an absolute right to one’s property would thwart the later assertion of a power to tax.

     Yet Jefferson was sincere about property rights. One of the accomplishments of his first term as president was the cessation of direct federal taxes:

     At home, fellow citizens, you best know whether we have done well or ill. The suppression of unnecessary offices, of useless establishments and expenses, enabled us to discontinue our internal taxes. These covering our land with officers, and opening our doors to their intrusions, had already begun that process of domiciliary vexation which, once entered, is scarcely to be restrained from reaching successively every article of produce and property. [ Second Inaugural Address ]

     Every tax, regardless of its nature or its rationale, is an infringement upon property rights. This is true even of an indirect tax, for it infringes upon the right of buyer and seller to trade their rightful property. Jefferson’s dedication to property rights led him to eliminate direct federal taxation – taxes that fall upon individuals and institutions – out of the federal exchequer, leaving indirect taxes – taxes on imports, exports, and particular kinds of commerce, which can therefore be avoided – as Washington’s sole sources of revenue.

     What persons or institutions escape direct taxation – federal, state, or local – today? In these post-Kelo years, what item of real or tangible property is safe from arbitrary confiscation? Is it safe even to have cash or other valuables on your person?


     Jefferson’s conception of liberty embraced the freedom of choice and movement he deemed every peaceable individual to possess. An American’s self-ownership, in Jefferson’s view, was absolute; he could therefore do whatever he pleased, subject only to the constraint that he not interfere in others’ equal right to do likewise, and the State could do nothing to hinder him. Nor could the State force him to labor for its sake, which would constitute the most direct imaginable “tax” on his unalienable rights to himself and his freedom of choice.

     The writ of habeas corpus, mentioned specifically in the Constitution, is an expression of Jeffersonian liberty. An individual’s freedom of movement could only be constrained by the State if it could make a “valid reply” to a petition for habeas corpus. In the early years of the Republic, few replies were deemed valid: chiefly imprisonment subsequent to a criminal conviction by a jury of one’s peers.

     When Abraham Lincoln decided to institute conscription for the purpose of fighting the Civil War, he found it legally necessary to suspend the applicability of habeas corpus. Though there is provision for this in the Constitution:

     The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. [Article I, Section 9]

     ...it is a specifically Congressional prerogative to do so. Lincoln bypassed Congress and issued an order on presidential authority that habeas corpus petitions were to be ignored by his military commanders.

     Today, habeas corpus can be answered by a slew of “valid replies.” Most of them would have horrified Jefferson and the other Founding Fathers. Given that a man can be stopped for “questioning” without pretext or charge, and can be detained arbitrarily for 72 hours, entirely on police say-so, in every state in the Union, is there freedom of movement in America today?


     Ah, the “right to life.” You’d think that one, at least, would still be respected. After all, the State can’t just kill you as you’re walking along, can it? Surely it can’t come into your home and kill you, just because it decides to do so?

     Oops. Sorry. My mistake.

     So much for your “right to life.”


"Rights are an archist concept. Rights have no meaning except when confronted with superior power. They are what is left to the people after the government has taken all its wants. Your country's Bill of Rights defines your most cherished freedoms how? By limiting the legal power of government to encroach upon them." [Eric L. Harry, via fictional anarchist theorist Valentin Kartsev in Harry's novel Protect and Defend.]

     It would appear that “superior power” acknowledges no rights. The rationale is almost always “compelling government interest:” that is, the State’s interest in...what? How can the State, a fictional creature made up of individuals such as you and I, hired to do the relatively simple jobs (NB: “simple,” not necessarily “easy”) of keeping the peace in the streets, operating a court system, and defending the territory of the United States, have “interests?” It’s a BLEEP!ing hireling, and hirelings have no interests; they have responsibilities and delegated, enumerated powers, nothing more.

     The State’s “interests” are nonexistent. However, the individuals at the levers of power don’t see it that way. They want power, and as much of it as they can grab. Your “rights?” Sorry, buddy, they were just an Eighteenth Century philosopher’s idle fancy. Just a few words on a scrap of parchment. At any rate, we shan’t concern ourselves with them today. There’s oppressing work to be done!

     “Your government’s” work.


     I’ll close this tirade with a snippet from a work of fiction. It comes closer to capturing my cynicism and fear than anything else that currently comes to mind. The book it’s from is about an unusual family. All three of its members possess psi powers...and all three of them have the State’s crosshairs on their backs:

     “Once upon a time there was an experiment in which twelve people participated,” Quincey said. “About six years ago. Do you remember that?”

     “I remember it,” Andy said grimly.

     “There aren’t many of those twelve people left. There were four, the last I heard. And two of them married each other.”

     “Yes,” Andy said, but inside he felt growing horror. Only four left? What was Quincey talking about?

     “I understand one of them can bend keys and shut doors without even touching them.” Quincey’s voice, thin, coming across two thousand miles of telephone cable, coming through switching stations, through open-relay points, through junction boxes in Nevada, Idaho, Colorado, Iowa. A million places to tap into Quincey’s voice.

     “Yes?” he said, straining to keep his voice level. And he thought of Vicky, who could sometimes turn on the radio or turn off the TV without going anywhere near it-and Vicky was apparently not even aware she was doing those things.

     “Oh yes, he’s for real,” Quincey was saying. “He’s—what would you say?-a documented case. It hurts his head if he does those things too often, but he can do them. They keep him in a little room with a door he can’t open and a lock he can’t bend. They do tests on him. He bends keys. He shuts doors. And I understand he’s nearly crazy.”

     “Oh ... my ... God,” Andy said faintly.

     “He’s part of the peace effort, so it’s all right if he goes crazy,” Quincey went on. “He’s going crazy so two hundred and twenty million Americans can stay safe and free. Do you understand?”

     “Yes,” Andy had whispered.

     “What about the two people who got married? Nothing. So far as they know. They live quietly, in some quiet middle-American state like Ohio. There’s maybe a yearly check on them. Just to see if they’re doing anything like bending keys or closing doors without touching them or doing funny little mentalist routines at the local Backyard Carnival for Muscular Dystrophy. Good thing those people can’t do anything like that, isn’t it, Andy?”

     Andy closed his eyes and smelled burned cloth. Sometimes Charlie would pull open the fridge door, look in, and then crawl off again. And if Vicky was ironing, she would glance at the fridge door and it would swing shut again—all without her being aware that she was doing anything strange. That was sometimes. At other times it didn’t seem to work, and she would leave her ironing and close the refrigerator door herself (or turn off the radio, or turn on the TV). Vicky couldn’t bend keys or read thoughts or fly or start fires or predict the future. She could sometimes shut a door from across the room and that was about the extent of it. Sometimes, after she had done several of these things, Andy had noticed that she would complain of a headache or an upset stomach, and whether that was a physical reaction or some sort of muttered warning from her subconscious, Andy didn’t know. Her ability to do these things got maybe a little stronger around the time of her period. Such small things, and so infrequently, that Andy had come to think of them as normal. As for himself...well he could push people. There was no real name for it; perhaps autohypnosis came closest. And he couldn’t do it often, because it gave him headaches. Most days he could forget completely that he wasn’t utterly normal and never really had been since that day in Room 70 of Jason Geameigh.

     He closed his eyes and on the dark field inside his eyelids he saw that comma-shaped bloodstain and the nonwords COR OSUM.

     “Yes, it’s a good thing,” Quincey went on, as if Andy had agreed. “Or they might put them in two little rooms where they could work full-time to keep two hundred and twenty million Americans safe and free.” “A good thing,” Andy agreed.

     “Those twelve people,” Quincey said, “maybe they gave those twelve people a drug they didn’t fully understand. It might have been that someone—a certain Mad Doctor—might have deliberately misled them. Or maybe he thought he was misleading them and they were deliberately leading him on. It doesn’t matter.”

     “No.”

     “So this drug was given to them and maybe it changed their chromosomes a little bit. Or a lot. Or who knows. And maybe two of them got married and decided to have a baby and maybe the baby got something more than her eyes and his mouth. Wouldn’t they be interested in that child?”

     “I bet they would,” Andy said, now so frightened he was having trouble talking at all. He had already decided that he would not tell Vicky about calling Quincey.

     “It’s like you got lemon, and that’s nice, and you got meringue, and that’s nice, too, but when you put them together, you’ve got...a whole new taste treat. I bet they’d want to see just what that child could do. They might just want to take it and put it in a little room and see if it could help make the world safe for democracy. And I think that’s all I want to say, old buddy, except...keep your head down.”

     [Stephen King, Firestarter]

     Know of any convenient planetoids, Gentle Reader?

2 comments:

  1. And speaking of the Spoonerites, will we see a 4th book? Or is it a trilogy, and therefore over?

    There is so much yet to tell. What happened to Earth? What does the new Morelon scion do for freedom?

    ReplyDelete
  2. Yes, Backwoods, there will be a fourth Spooner Federation novel -- and it might be the next one off the presses. (I've received so much reader demand for one that I can't resist.)

    ReplyDelete

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